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Kaiser Emergency Room Problems
As was reported in an earlier www.medicalaw.net legal opinions, Kaiser was fined $1.1million for poor emergency room care in it's facilities. This came after three deaths directly related to lapses in care. As you know Kaiser can usually can not be sued due to an compulsory arbitration agreement in their patient contracts. Since 1995, Kaiser has lost at least nine arbitrations stemming from their emergency room overcrowding and poor staffing. The number of cases are indeed small considering the large number of people seen in the Kaiser emergency departments, but there may be a trend. These nine cases representing $3.5 million are only the tip of the iceberg since most cases are settled prior to the arbitration and the results sealed. The nine emergency room cases arbitrated were (1) diabetic death, (2) a 6 year old with undiagnosed heart disease, (3,4) two cases of undiagnosed ruptured aortic aneurysm, (5) 41 year old with three visits for chest pain before dying of a myocardial infarct, (6) undiagnosed bacterial infection by a physician who had seen 25 patients in his office during the day and 15 others that evening in a urgent care center, (7) asthma patient sent home and died, (8) failure to diagnose meningitis in a 4 year old and (9) failure to diagnose glass embedded in a knee that later caused cartilage damage. See also Legislative News. Top
Kaiser Lies in Ads?
In a suit coming to trial in the fall, Kaiser has been accused of not telling the truth in their advertising. A large ad campaign has been that "decisions were in the hands of doctors." The consumer group suing Kaiser for false advertising states that the care was in the hands of administrators and the infamous Milliman & Robertson accounting firm. The firm came up with guidelines specifically for Kaiser for length of stay and care. This trial will look at how business decisions play a role in Kaiser's medical staff decisions. The suit contends that Kaiser encouraged physician's cost reduction by withholding up to 30% of salary if targets were not met. The plaintiff also has an e-mail from an official asking if the ad does not overstate the truth and how they are going to prevent the misconception that all care is in the hands of physicians. She thought it might be false advertising since decisions are team driven and not just physician. Top
O'Byrne v Santa Monica Hospital
CA Ct. App
In a decision sure to cause consternation among physician's attorneys the above court has changed the rules. The rule for the past several years, and still present in federal court, comes from Janda v Madera Hospital. Janda stated that the federal court believed bylaws to be a binding contract. This new decision changes that in California's Second Appellate District. The decision is not binding on any other state appellate district. The facts are unusual and the old adage holds that bad facts make bad law. O'Byrne applied for privileges in 1992 in both internal medicine and cardiology. He was eventually given internal medicine privileges but was lied to by the hospital regarding his request for cardiology privileges. He was told they are working on it when in truth they were denied. The hospital did ask for more information but never received the asked for information. O'Byrne got in trouble at first by not responding promptly to phone calls from the ED. Other committees then also called some of his practices into question. He delayed responding to all these inquiries as well. He was on the staff of about 13 hospitals in the LA area. The Chief of Staff met with O'Byrne and the Executive Medical Board in 1998. The Board required that O'Byrne maintain an office and phone number and be listed in the phone book. He was also relieved of his ED duties from which he received a significant amount of money. He was also required to complete his rounds by a time certain and do no cardiology consultations since he had no privileges in that subspecialty. A letter was sent to O'Byrne regarding the above and he was told that failure to comply would result in his loss of Attending Staff membership and/or privileges. He was also told that he would have no right of a peer review hearing. O'Byrne immediately filed suit against the hospital for breach of contract, breach of fiduciary duty and interference with business. Five months later O'Byrne was told he had not complied with the requirements and his medical staff membership would be revoked. He was also told he may have a Judicial Review hearing. Instead, he resigned from the staff. The trial court and the court of appeal both agreed for summary judgment for the hospital on all counts. The Appeals Court stated that Janda depended on the Board of Trustee bylaws and this case was the medical staff bylaws. This court threw out as bad analysis of contract law any other court's holding regard to bylaws. They state there was no consideration given between the parties. Consideration is doing something you do not have to do and receiving something in return that is also not legally necessary. In California the law relating to bylaws coverage is encompassing and therefore almost nothing will pass for consideration. No consideration; no contract. Also, the court looked at AB 405 that was to make bylaws a contract for legislative intent. This was amended to take out that provision and then passed but vetoed by the Governor. The court finished by stating that even though there is no contract a physician can enjoin a hospital from contravening the terms and provisions of the bylaws. The Court then threw out the other two claims quickly. This means that a physician in California, at least in that District, can not sue a hospital for breach of contract based on the bylaws. The physician can hold a hospital and the medical staff to the terms and conditions of the bylaws. Top
When is a Binding Arbitration Agreement Not?
Palmer v Superior Ct. San Diego
CA Ct. App.
In a case ordered not published and therefore can not be used for precedent, PacifiCare HMO was told that its binding arbitration agreement did not hold due to its own negligence. Palmer needed a new prosthesis and was denied after 7 weeks. The HMO was to make a decision in 30 days. He appealed the decision and this was not denied for an additional three months. He then sued and PacifiCare moved for binding arbitration. Palmer's physician was at Sharp Medical Group and initialed the request for an ultra light prosthesis for $18,000. The physician was told by the Medical Director not to agree to the prosthesis due to the capitation rate. The patient was also told by his physician, under orders from the Medical Director, that if he persisted in his appeal a letter was to be sent to the disability insurer questioning his disability. His physician sent a memo to the Medical Director stating Palmer needed a new prosthesis and due to his lifestyle he may or may not need the ultra light one. He also said that Palmer was disabled. Palmer received a copy of the memo. This case closely resembles the infamous Kaiser action in Engalla (1997) which voided their binding arbitration agreement due to their egregious acts. This case quoted on many occasions the California Supreme Court decision regarding Kaiser's actions. This case is another nail in the coffin of HMOs who attempt to intimidate patients by delay and not following their own rules. Top
US V Souaid
Souaid, a Florida urologist is being investigated for diluting Lupron, an anti prostate cancer drug. The government has asked his patients to get tested for their testosterone levels which should be near zero. Many have come back over or in the normal levels. The doctor states the accusations are false and are being fostered by a disgruntled fired former office manager.
US v KPMG
KPMG has paid a fine of $9 million for fraud. They were accused of filing false hospital cost reports. KPMG had a double set of "books", which were found. This shows that the hiring of the major accounting firms does not protect one against fraud. The involved hospital systems also paid large fines. Top
Chestnut v Bayfront Medical Center
Florida Superior Ct.
Chestnut, a Black, unmarried female gave birth to a baby at Bayfront Medical Center. During her stay she was asked if she had Medicaid or no insurance. She has good private insurance. A Bayfront social worker asked her where she planned to send her baby while in jail. This was because two of her friends from the Sheriff's office had visited her. Chestnut also works at the County jail and has for seven years. Neither the nurse, who asked about the insurance when the fact that she was insured was on her registration papers, nor the social worker have apologized and therefore the hospital is being sued. A preliminary formal complaint prior to the lawsuit has been filed. This hospital is sorely in need of upper management direction and diversity training. Top
Doe v S.C. Med. Malpractice Liability Assn.
NC Supreme Ct.
Dr. Doe, an ED physician, responded to a Code Blue in the ICU. The patient died from a misplaced endo-tracheal tube. Doe was sued and the lower court exonerated him under the "Good Samaritan Act". He was not hired to care for those in the ICU. His insurance company charged part of the settlement against his policy. He sued claiming bad faith. The Supreme Court did not discus the Good Samaritan aspect only the bad faith aspect and went with the insurance company.
Lanstrum v Manatee Hospital
Fla. Superior Ct.
Lanstrum, a nurse at the hospital, had bilateral breast implant extenders inserted at the hospital. She got a serious infection and is alleging it was due to a contamination of the water supply and the pipes by mycobacteria. She has had to undergo multiple surgeries to correct the procedure. The hospitals denied any problem but the CEO refused to answer whether or not any tests on the water or the pipes had been performed. A physician and a nurse anesthetist have both given affidavits stating at least two other patients had the same type infection. The hospital is dead meat. They lose in publicity and potentially in court.
Alameda County Settlement
In a settlement on the day of jury selection that kept confidential the plaintiff and defendants, a physician/ attorney who specializes in bad baby cases won another. This one is for $5 million against the physician plus more against the hospital. The contention is that every minute counts. The mother presented to the hospital at 0700 for an elective induction. The monitor was normal and the OB ruptured the membranes. All progressed normally until 1351 when there was a sudden deceleration to 60 beats per minute. Within one minute a perinatologist and several nurses arrived to help. The anesthesiologist was present within two minutes of being notified. The perinatologist attempted to deliver the baby but was unsuccessful. He was dismissed from the suit. A nurse began to set up another room for a C-Section and at 1359 the patient's OB arrived. He examined the mother and found a prolapsed cord which he reduced. He attempted twice to deliver the baby at 8-9 cm. and 0 station. The patient was then transferred to the OR suite at 1418 and the incision was at 1422 and delivery at 1425. The child had some anoxia and has cerebral palsy with normal intellect. The plaintiff contended that there should not have been any attempt at vaginal delivery. They also contended that the hospital was capable of performing an emergency section in 10 minutes and it was not performed for 15 minutes. The OB stated his attempt to deliver vaginally was proper and when not successful accomplished the C-Section in 10 minutes. He also stated the damage was done in the nine minutes prior to his arrival and relieving the prolapsed cord. Top
AAPC v HHS
TX DC
The Association of American Physicians and Surgeons sued the HHS to stop the implementation of HIPAA on constitutional grounds. The suit claims the government would have access to personal records without a warrant, intrude on the right of communication between patient and physician and intrude on the state's right to regulate the maintenance of medical records. The HHS has now filed a motion to dismiss the suit and the AAPC has several weeks to respond. This is separate from the South Carolina suit joined by Louisiana. Top
Sweden has absolved Baxter of any criminal liability in the deaths of dialysis patients using Baxter filters. The prosecutor found that "it would have been difficult to predict the chemical reaction that apparently resulted when the liquid in question came in contact with patient blood."
A Kentucky judge refused to limit the marketing of OxyContin. A group of citizens sued for the injunction but did not prove their prima facie case. There are still several individual lawsuits against the company for deaths from the drug, usually from criminal behavior.
Two other claims for OxyContin against Purdue Pharma in Maine and North Carolina have also been dismissed. These are the third and fourth cases that have gone against the plaintiffs. There has not been any successful suits by any plaintiff.
In another case, Florida, a saleswoman testified that she told a physician on many occasions how to assess a patient. The physician did not follow the advice and a patient died from an overdose of OxyContin. The physician's defense is that the patient crushed the tablets and snorted the medication.
Still in Florida, a Delray Beach physician has been charged with a violation of the Unfair Trade Act by selling Cipro on-line. The on-line form on medical history was already permanently filled out showing no significant medical problems.
The Fen-Phen suit is now over. American Home Products has place $3.75 Billion in a fund to compensate all plaintiffs for any injuries resulting from the medication. The time for appeal of the fund has passed. Top
Martinez v Hosp. Menonita
DC Puerto Rico
This is another case that stand for the proposition that EMTALA is not a medical malpractice statute. The patient swallowed a small turkey bone and went to the ED complaining of some difficulty swallowing. The physician did a barium swallow which was negative and sent the patient home. The next day the patient returned to the ED with the same complaints. A repeat barium swallow showed a perforation and the patient underwent surgery. The patient sued the first doctor under the EMTALA statute and not the state malpractice statute. No expert is required to determine the standard of care in an EMTALA case. The patient lost since the patient had a screening exam, including an x-ray and was determined to be stable for discharge. The court stated that there could be an EMTALA violation only if a usual screening procedure was not performed and that burden fell on the plaintiff. They characterized this has a standard malpractice case. Top
Avitia v US
9th Circ
The suit was in federal court since the clinic where the incident occurred was a government funded clinic. The patient claimed sexual assault by a physician and that there was no chaperone present for the patient's GYN exam. The district and 9th Circuit both ruled against the clinic on its own for not following its own procedure for chaperones and also for the physician's liability under the concept of vicarious liability or respondeant superior (let the master answer). Top
Moran v Rush HMO
US Supreme Court
The US Supreme Court this week will hear and decide a split of the lower courts revolving around independent medical reviews. The Moran case under Illinois law is when a patient required a procedure done by a physician outside of the network and agreed to by an independent outside physician, the HMO should pay. The HMO states the Illinois law is void since ERISA supercedes. The patient won in the lower courts and the appeal is by the HMO. Texas has a case diametrically opposed in the result. Top
Jagodowicz v Seaver
Cal Ct. App.
In a widely publicized case of several years ago a anesthesiologist was accused of requiring a payment of $400 cash upfront prior to giving anesthesia for a delivery. The anesthesiologist filed a defamation suit against the hospital administrator for statements to the press. The administrator filed a motion to dismiss the complaint as being a SLAPP suit ( strategic lawsuit against public participation), an illegal suit in California. There must also be no possibility of the plaintiff prevailing. The court stated that there was a possibility of the plaintiff prevailing so it would not toss the case. The administrators comments were made both in a protected environment, the court, and in an unprotected environment, the press. Top
DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.